Nursing and Midwifery Council:

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing June 2018 Nursing and Midwifery Council, Temple Court, 13a Cathedral Road, Cardiff CF11 9HA Name of registrant: NMC PIN: Lesley Ellen Edwards 97C0029W Part(s) of the register: Registered Nurse Sub part 1 Adult Nursing (March 2000) Registered Midwife Midwifery (June 2005) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Facts proved by admission: Facts not proved: Fitness to practise: Sanction: Interim order: Wales Misconduct Nicola Jackson (Chair, Lay member) Catherine Cooper (Registrant member) Claire Rashid (Registrant member) Charles Parsley Jonathan Storey Present and represented by Penny Maudsley, Counsel of Alexander Chambers Represented by Kim Elcoate May, Case Presenter All None Impaired Conditions of practice order (3 years) Review not necessary under Article 29(8A) Interim conditions of practice order (18 months) 1

2 Details of charge (as amended): That you, a registered midwife, whilst working at Royal Gwent Hospital on 11 July 2015 in relation to Patient A: 1. Failed to auscultate the fetal heart rate and simultaneously take the maternal pulse manually at the commencement of the CTG trace. (PROVED BY ADMISSION) 2. Failed to carry out and/or document the following maternal observations on the partogram and/or within the care records: a. Maternal pulse; (PROVED BY ADMISSION) b. Blood pressure; (PROVED BY ADMISSION) c. Temperature; (PROVED BY ADMISSION) d. Respirations. (PROVED BY ADMISSION) 3. In relation to the CTG trace: a. Failed to classify/categorise the CTG from around 10:50am as pathological; (PROVED BY ADMISSION) b. Failed to escalate the pathological CTG to the shift leader or obstetrician within 15 minutes of it commencing; (PROVED BY ADMISSION) c. Did not make a note on the CTG trace confirming the exact timing of the vaginal examination and/or change of position; (PROVED BY ADMISSION) d. Did not use a CTG sticker. (PROVED BY ADMISSION) 4. Did not utilise the call bell to call for assistance on one or more occasion. (PROVED BY ADMISSION) 5. Incorrectly recorded in the notes that it was attempted to allow cord to bleed to baby for 1 minute. (PROVED BY ADMISSION) 2

3 6. Incorrectly recorded on the CTG trace that the delivery time was (PROVED BY ADMISSION) 7. Your actions at charge 3a created a loss of opportunity for Baby A. (PROVED BY ADMISSION) AND, in light of the above your fitness to practice is impaired by reason of your misconduct. 3

4 Decision and reasons on application to amend the charge The panel heard an application made by Ms Elcoate May, on behalf of the Nursing and Midwifery Council (NMC), to amend the wording of charge 5. The proposed amendment was to split charge 5 into two separate charges. Charge 5 would concern your incorrect recording in the patient notes; charge 6 would concern your incorrect recording on the cardiotocography (CTG) trace. Ms Elcoate May submitted that the proposed amendment would provide clarity and more accurately reflect the evidence. Original charge 5. Incorrectly recorded in the notes: a. That it was attempted to allow cord to bleed to baby for 1 minute. b. That the delivery time was Charges as amended 5. Incorrectly recorded in the notes that it was attempted to allow cord to bleed to baby for 1 minute. 6. Incorrectly recorded on the CTG trace that the delivery time was Ms Maudsley, on your behalf, submitted that you agreed with the proposed amendment. The panel accepted the advice of the legal assessor that Rule 28 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 (the Rules) states: 28. (1) At any stage before making its findings of fact, in accordance with rule 24(5) or (11), the Investigating Committee (where the allegation relates to a 4

5 fraudulent or incorrect entry in the register) or the Fitness to Practise Committee, may amend (a) (b) the charge set out in the notice of hearing; or the facts set out in the charge, on which the allegation is based, unless, having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice. (2) Before making any amendment under paragraph (1), the Committee shall consider any representations from the parties on this issue. The panel was of the view that the proposed amendment, as applied for, was in the interest of justice. The panel was satisfied that there would be no prejudice to you and no injustice would be caused to either party by the proposed amendment being allowed. It was therefore appropriate to allow the amendment, as applied for, to ensure clarity and accuracy. 5

6 Introduction This case had been listed as a contested substantive hearing and the NMC had intended to call two witnesses to provide oral evidence. In the event, you admitted all of the charges (as amended) and the panel announced the facts proved. Upon reading the NMC bundles, the panel formed the view that it would gain a better understanding of the circumstances of the incident if it were to hear oral evidence from the witnesses and that that, in turn, would facilitate its adjudication upon the relevant issues at the impairment stage. In addition to hearing from the witnesses, the panel received an additional bundle of evidence from you. The panel was enabled to hear oral evidence from you, as the only direct witness to the incident, which it deemed would be helpful. Having had the benefit of the live evidence, the panel considered that this provided significant further detail, seeming at times at variance with the picture presented by the written documentation it had previously carefully reviewed. 6

7 Background The charges arose whilst you were working at Royal Gwent Hospital (the Hospital) as a registered midwife. On 10 July 2015, Patient A was admitted to the Hospital for induction of labour on her due date. Patient A was booked for obstetric-led care for a planned hospital birth because of her past medical history. Risk factors were present as Patient A had had a previous caesarean section and there were also concerns about fetal growth during the antenatal period. At the outset of pregnancy, there was a suspicion of ventricularmegaly, and latterly static/slow and asymmetric growth had been identified as well as suspected microcephaly. Patient A was transferred to the labour ward from the antenatal ward at 10:20am on 11 July 2015, at which point you took over her care. Patient A gave birth to Baby A at 11:49, who was unresponsive and required neonatal resuscitation and emergency paediatric attention. Baby A subsequently died. Numerous concerns were raised about the care you gave to Patient A, in particular: concerns about your recording of maternal observations in labour; concerns about your interpretation of a CTG trace; concerns about your failure to escalate a pathological CTG; and concerns about your failure to escalate appropriately using appropriate communication. The concerns regarding your practice were raised to the Local Supervisory Authority Midwifery Officer and an investigation was conducted. The investigation report recommended that you complete a Local Supervisory Authority Practice Programme (LSAPP) for 450 hours. You were unable to complete the practice programme and were referred to the NMC. 7

8 Decision on the findings of facts and reasons At the start of the hearing, you admitted all charges 1 and 3-7 in full. With respect to charge 2, you admitted that you failed to document maternal observations on the partogram and within the care records, but denied failing to carry out the relevant observations. Ms Elcoate May submitted that there was no direct documentary evidence before the panel to prove that you did not carry out the relevant observations. She invited the panel to find charge 2 proved solely on the basis that you failed to document the relevant observations. Ms Maudsley, on your behalf, had no objections to this course of action. The panel accepted the advice of the legal assessor and announced the charges as proved by way of your admissions. 8

9 Evidence and submissions on misconduct and impairment Having announced its findings on the facts, the panel then moved on to consider whether the facts found proved amount to misconduct and, if so, whether your fitness to practise is currently impaired. There is no statutory definition of fitness to practise. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. At this stage, the panel heard evidence on behalf of the NMC from Ms 1 (Supervisor of Midwives at the time of the events) and Dr 2 (Lead for Obstetric Risk at the Hospital). The panel also heard evidence from you. Ms 1 and Dr 2 confirmed the conclusions of their investigations to the panel. Ms 1 s supervisory investigation focussed solely on midwifery care and included interviews with you and your midwifery colleagues at the time of the incident. The panel noted that the student midwife present who was a direct witness had not been interviewed as part of this investigation. Dr 2 s investigation concerned the incident as a whole, excluding midwifery practice concerns, and focussed on patient notes and other contemporaneous documentary evidence. You outlined to the panel your chronology of events. You stated that you were provided with a very brief verbal handover, which did not encompass any of the risk factors present towards Patient A or Baby A and only identified that Patient A had had a previous caesarean section. You told the panel that you did not receive appropriate information about the care provided to Patient A on the antenatal ward. You described the level of support you received as minimal, and were surprised that a student midwife was assigned to you, a bank midwife, to assist in a high-risk labour. You also told the panel that you would have expected Patient A to have had a review by an obstetrician upon admission to the labour ward. 9

10 You apologised for your actions and admitted that you did not meet the necessary standards expected of you as a registered midwife. You stated that, following the incident, you felt you did not receive support and were abruptly deployed from the labour ward and have not practised midwifery for nearly three years. You told the panel that you have since worked as a general nurse in a surgical setting. You attempted to complete the necessary practice hours as a midwife as set out in the LSAPP, but were informed by your supervisor of midwives that you would not be able to do so in the allotted time, because you were working full-time as a registered nurse. You said that you do not intend to return to midwifery but that, if you did, you would complete the appropriate level of training before doing so. You stated that you have kept up-to-date with all record keeping training as a registered nurse, and that this experience has made you hypervigilant and very careful with your documentation. In her submissions, Ms Elcoate May invited the panel to take the view that your actions amounted to breaches of The Code: Professional standards of practice and behaviour for nurses and midwives (2015) (the Code), as well as the Midwives Rules and Standards (2012) (the Standards), in force at the time of the incident. She then directed the panel to specific paragraphs/sections and identified where, in the NMC s view, your actions amounted to misconduct. Ms Elcoate May referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. Ms Elcoate May then moved on to the issue of impairment, and addressed the panel on the need to have regard to protecting the public and upholding the wider public interest. This included the need to declare and maintain proper standards and maintain public confidence in the profession and in the NMC as a regulatory body. In this regard, Ms Elcoate May referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). 10

11 Ms Maudsley, on your behalf, submitted that you accept that your actions amounted to serious professional misconduct and that your fitness to practise as a midwife is currently impaired. Ms Maudsley reiterated the stressful situation that you found yourself in at the material time, as well as your genuine remorse and insight. The panel accepted the advice of the legal assessor, which included reference to a number of relevant judgments, including Roylance and Grant. The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of that misconduct. 11

12 Decision on misconduct When determining whether the facts found proved amount to misconduct, the panel had regard to the Code, the Standards and the relevant guidelines in place at the Hospital at the time of the incident. In reaching its decision, the panel had regard to the public interest, accepted that there was no burden or standard of proof at this stage and exercised its own professional judgement. Before making its determination on misconduct, the panel considered the credibility and reliability of the witnesses from whom it had heard. The panel considered Ms 1 to be honest in her attempts to assist the panel. The panel was aware that she was not a direct witness to the events, but interviewed you and your midwifery colleagues as part of her investigation. The panel considered that it had no reason to doubt the sincerity of her evidence. The panel considered the evidence of Dr 2 to be helpful in its contents. The panel was also aware that she was not a direct witness to the events, and only reviewed a limited section of documents as part of her investigation. The panel considered Dr 2 to be sometimes defensive when answering its questions, but did not consider that to reflect the accuracy or reliability of her evidence. The panel considered your evidence to be honest, open, candid and sincere. You expressed deep and genuine remorse for your conduct and attempted to assist the panel where possible. The panel had no reason to doubt your version of events, which was consistent with all of the documentary evidence before it, including your statement made in September The panel noted that you were the only witness to provide direct evidence about the incident and did not receive any evidence from the student midwife or band 7 midwife also present at the time. 12

13 From its review of the evidence, the panel identified the following failings in the care of Patient A and Baby A prior to their admission to the labour ward: a failure to refer for an MRI scan following suspicion of microcephaly, as confirmed by Dr 2; no obstetric review or documented plan upon admission to the antenatal ward; a failure to perform six-hourly CTG monitoring, confirmed by Dr 2; a failure to commence CTG monitoring at 10:00pm on 10 July 2015, when Patient A reported uterine activity; and failure to remove the Propess pessary and commence CTG monitoring at 8:45am on 11 July 2015 when Patient A reported spontaneous rupture of membranes and regular contractions. In addition, the panel noted that Patient A s induction of labour had been delayed for some hours in order to allow a special care baby unit cot to become available, and there was no obstetric review or plan upon admission to the labour ward. The panel was unable to establish any evidence that key information regarding any risk factors, apart from Patient A s previous caesarean, was identified to you at handover. In particular, you were not provided with information regarding the failure to conduct the required CTG monitoring on the antenatal ward during induction, nor any other necessary indication of the risk factors associated with Patient A. During your care of Patient A on the labour ward, the panel found no evidence (as confirmed by Dr 2) to support the finding of the supervisory investigation that the band 7 midwife present had escalated the CTG to the obstetric registrar. The panel was of the opinion that the retrospective entry made by the band 7 midwife on the day of the incident which made no reference to CTG concerns or any referral and your evidence, were more likely to represent the facts in this case and that the band 7 midwife reassured you and Patient A that the CTG was normal and that birth was imminent. 13

14 The panel was of the view that some of your actions did fall significantly short of the standards expected of a registered midwife, and amounted to breaches of the Code. Although you accepted as part of your oral evidence that you had breached the Code, the panel conducted its own independent assessment, and considered the following elements had been breached: 10.1 complete all records at the time or as soon as possible after an event, recording if the notes are written some time after the event 10.2 identify any risks or problems that have arisen and the steps taken to deal with them, so that colleagues who use the records have all the information they need 10.3 complete all records accurately and without any falsification, taking immediate and appropriate action if you become aware that someone has not kept to these requirements 11.3 confirm that the outcome of any task you have delegated to someone else meets the required standard 13.1 accurately assess signs of normal or worsening physical and mental health in the person receiving care The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. It went on to consider each charge and determine whether the facts found proved amounted to serious professional misconduct. With regard to charge 1, the panel noted that simultaneously auscultating the fetal heart rate and manually taking the maternal pulse at the commencement of a CTG trace is best practice as a midwife. Doing so provides the clearest record of the mother and baby s health at the material time. The panel accepted your evidence that, upon starting 14

15 the CTG trace, you had used a pinard stethoscope to auscultate the fetal heart rate, and that the CTG machine was also recording the maternal pulse simultaneously via a pulsoximeter. The panel considered that, as a result of your actions, there was a contemporaneous record of both Patient A and Baby A s heart rates. Although your actions fell short of the standards expected of a midwife, the panel had regard to the circumstances you found yourself in. It considered such circumstances to be stressful, and that your actions did not fall seriously short of these standards. As such, it considered that your actions with regard to charge 1 did not amount to misconduct. With regard to charge 2 in its totality, the panel considered that you admitted not documenting various basic maternal observations on the partogram and within Patient A s care records. The panel considered full and accurate record keeping to be a fundamental tenet of midwifery practice, irrespective of the stressful situation you found yourself in. The absence of such observations presents an incomplete picture of the condition of Patient A and the care and treatment provided to her at the relevant time. The panel considered your omissions in this regard to be serious, falling far short of the standards expected of a midwife; as such, it considered that your failures in charge 2 amounted to misconduct. With regard to charge 3a, the panel carefully considered your evidence and that of Ms 1 and Dr 2. The panel noted the contention of Ms 1 and Dr 2 that the relevant CTG trace should have been classified/categorised as pathological from around 10:50am. However, Ms 1 and Dr 2 provided conflicting explanations for their assessments and admitted that they had the benefit of hindsight. Dr 2, a consultant obstetrician with a speciality in fetal medicine, told the panel that the CTG trace was very difficult and problematic to interpret. Without knowledge of Patient A s previous obstetric history, Dr 2 conceded that it could be possible to classify/categorise the CTG trace from 10:50am as normal. Dr 2 also stated that, as part of her review of this incident, she brought the CTG trace to a committee of consultant obstetric and gynaecological colleagues, who also found it difficult to interpret. You told the panel that, at 11:35am, you noticed a deceleration on the CTG trace and sought assistance from the band 7 midwife on shift. 15

16 You stated that the band 7 midwife offered Patient A an episiotomy, which she refused. She reassured you and Patient A that the CTG trace was normal and left the room. You told the panel that you would have preferred her to stay in the room to support you during the birth of Baby A, which was imminent. You therefore considered the trace to be normal and proceeded on that basis. Ms 1 agreed that this escalation was appropriate in the circumstances and that, having been reassured following escalation of your concerns by the labour ward co-ordinator, you could not have been expected to take further action at this stage. Dr 2 confirmed that it would have been appropriate for you to have been supported at this time. Ms 1 and Dr 2 both offered different interpretations of the CTG trace. Although you admitted failing to classify/categorise the CTG trace as pathological at 10:50am, Dr 2 repeatedly stated that the trace was difficult to interpret. When Dr 2 shared the trace with her obstetric colleagues, the consensus was that it was difficult to interpret, even with the benefit of hindsight. Consultant obstetricians receive specialist training in assessing patterns and trends in CTG interpretation. However, Dr 2 concluded that this trace was particularly difficult as there was no continuous reading from the antenatal ward. Although trained as a competent midwife, you did not have this specialist training. The panel considered that your failure to classify/categorise the CTG trace as pathological was an error and extremely unfortunate. However, given the high degree of difficulty in interpreting the CTG trace, as well as having received reassurance from your band 7 colleague, the panel considered that your failure did not fall seriously short of the standards expected of a registered midwife. As such, it considered that your failure with regard to charge 3a did not amount to misconduct. As a result of its findings in relation to charge 3a, the panel considered that your failure to escalate the pathological CTG to a shift leader or obstetrician could not amount to misconduct. Consequently, it considered that your actions in charge 3b could not amount to misconduct. 16

17 With regard to charge 3c, the panel considered that the making of a note on the CTG trace confirming the exact timing of the vaginal examination and changes of position of Patient A was an important part of record keeping. The panel noted the evidence it had received that, during her labour, Patient A moved around considerably and received a vaginal examination. Dr 2 stated in her oral evidence that an analysis of the CTG trace could have indicated times where these events occurred, but that a lack of notation meant that the trace was not as clear as it should be. The panel noted the difficult situation that you found yourself in at the time, in that you were trying to care for a mother in the second stage of a precipitant labour while supervising a student midwife who you had not previously met. However, it considered that your failures in this regard fell far short of best practice. The panel considered that you could have delegated this record keeping task to the student midwife present with you, in order for you to focus on assisting Patient A to birth her baby. As such, the panel considered that your failures with regard to charge 3c amounted to misconduct. With respect to charge 3d, the panel noted your statement that CTG stickers were not available. It also noted that the CTG trace before it did have a sticker at its commencement containing Patient A s name and other medical details, but lacking other essential information. However, it considered the Hospital s Fetal Monitoring Guidelines, which state that: During labour, formal assessment of the fetal heart rate should be undertaken hourly and the assessment clearly documented in the notes using the CTG sticker. It is essential that the CTG sticker is signed and the name of the professional printed legibly. This applies to the professional caring for the woman and the professional providing the fresh eyes assessment. The panel considered that Patient A was under your care for over an hour. With the exception of an inadequate sticker at the commencement of the trace, you did not use 17

18 such a sticker throughout your care, in particular the analytic sticker which should have documented your interpretation of the CTG trace. You accepted that you could have delegated this to the student midwife present. The panel considered this failure to be inconsistent with good midwifery practice; as a result of your omission, you clearly fell below the standards expected of a registered midwife. As such, the panel considered that your failures with regard to charge 3d amounted to misconduct. With regard to charge 4, the panel carefully considered your evidence. You described the layout of the room in detail; in particular, you stated that there were Patient A s bed, a toilet, and two CTG machines, one of which was attached to the wall (STAN) and the other on the floor, blocking ready access to the call bell. At the material time, you, a student midwife, Patient A, Patient A s partner and mother were all present in the room. At certain points, your band 7 midwife colleague was also present. You told the panel that the setup of this room was not appropriate that you and should possibly have requested a transfer to a different room. The panel was unable to establish whether this would have been possible. During the times when you required assistance, you admitted to not using the call bell, but calling to colleagues who you could hear immediately outside the room at the nurses station to request the necessary assistance. The panel considered that, given the setup of the room and the highly stressful nature of the situation, when you requested assistance to resuscitate Baby A, delegating this task to the student midwife was a more appropriate course of action than simply pressing the call bell, which was obstructed. The student midwife was able to escalate the situation directly to the relevant person, rather than send out a blanket alert for assistance. The panel did not find any evidence that your actions resulted in a delay of the relevant assistance being accessed. As such, the panel considered that your actions with respect to charge 4 did not amount to serious misconduct. 18

19 With regard to charge 5, the panel had sight of Patient A s medical notes, which stated: 11:49 SVD [spontaneous vaginal delivery] cord around shoulder and body. Attempted to allow cord to bleed to baby for 1 min however appeared to be unresponsive to being dried. Therefore quickly clamped. The panel noted that there was no evidence before it that it was attempted to allow the umbilical cord of Baby A to bleed for one minute at this time. In your statement at the local investigation, and in your reflective piece, you wrote that you immediately clamped and cut the cord and commenced resuscitation on the baby, and that your notes were written badly. You wrote that you should have written that you did not attempt to allow cord to bleed to Baby A. The panel noted that you accepted that this was an error in your record keeping, but did not consider such an error was made with intent to misrepresent the care you provided to Patient A and Baby A. The panel considered that, in all the circumstances, your error with respect to charge 5 was a simple mistake, and did not amount to serious misconduct. With regard to charge 6, the panel had sight of multiple documents, some of them contemporaneous, which recorded that Baby A was delivered at 11:49am, rather than 10:49am. Similarly to charge 5, the panel considered that your admitted error was not intended to misrepresent the care you provided to Patient A and Baby A. You also stated that you were unable to review and complete your records after the event as the notes had been removed when you returned to the hospital. The panel also considered your error with respect to charge 6 to be a simple mistake, rather than evidence of serious misconduct. With regard to charge 7, the panel carefully considered all of the evidence it had received. Earlier in this determination, the panel identified the failings in the care provided to Patient A prior to her transfer to the labour ward. 19

20 Dr 2 commented that her opinion of the CTG carried out at 3:25am on 11 July 2015 was that it was suspicious and should have warranted an obstetric review. In addition, Dr 2, in her concerns report produced as part of her investigation, wrote: There was a failure to monitor the wellbeing of this baby on the antenatal ward Despite the patient complaining of uterine tightenings (07.30hrs), spontaneous rupture of membranes and painful contractions (08.45hrs) no CTG assessment was made. Had a monitoring taken place, it is possible that the fetal hypoxia would have been revealed and an early obstetric intervention made. The NICE guideline states that once uterine contractions begin, fetal wellbeing should be assessed. The Local ABUHB guidelines request that CTG monitoring should be performed six hourly during induction of a suspected growth restricted fetus. In her witness statement to the NMC, Dr 2 stated that she found the overall root cause of the incident to be the failure by [you] to correctly interpret a pathological fetal heart recording. This is inconsistent with her oral evidence, in which Dr 2 stated that it was highly likely that Baby A was already compromised as a result of antepartum haemorrhage most likely caused by a large placental abruption, prior to Patient A being transferred to the labour ward. In addition, Dr 2 also wrote in her witness statement that: It is likely that the fetus at this time was already significantly compromised and therefore it is difficult to determine the final outcome had the baby been delivered between hours and hours. I am unable to identify a single individual as being responsible for the outcome. The panel noted that you admitted that your failure to classify/categorise the CTG trace at 10:50am as pathological created a loss of opportunity for Baby A. However, given the preponderance of conflicting oral and documentary evidence before it, the panel was 20

21 not satisfied that the loss of opportunity you created through your failure in this regard was significant in relation to the earlier failings previously identified. The panel considered that it was highly likely that the majority of Baby A s loss of opportunity occurred prior to Patient A being admitted to the labour ward. In the circumstances, the panel considered that this did not amount to misconduct. Having made its determinations on all of the charges, the panel therefore found that certain of your actions did fall seriously short of the conduct and standards expected of a registered midwife and amounted to serious professional misconduct. 21

22 Decision on impairment The panel next went on to decide if, as a result of this misconduct, your fitness to practise is currently impaired. Midwives occupy a position of privilege and trust in society and are expected at all times to be professional. Patients and their families must be able to trust midwives with their lives and the lives of their loved ones. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Grant in reaching its decision. The panel considered that, through your misconduct, you put Patient A and Baby A at an unwarranted risk of harm. As a result of your poor record keeping, the panel considered that you breached a fundamental tenet of the profession. However, the panel also considered that, although you were a party to a tragic situation which resulted in the death of Baby A, your misconduct was not sufficient in and of itself to bring the midwifery profession into disrepute. Regarding insight, the panel carefully reviewed your detailed reflective piece. The panel considered it to be slightly repetitive, but was aware that you had written this using a recognised reflective model. The panel noted that you made admissions at the outset of the hearing and were extremely candid and honest during your oral evidence. It considered that you demonstrated a thorough understanding of how your actions put Patient A and Baby A at risk of harm. The panel also considered that you demonstrated an understanding of why what you did was wrong and how this impacted negatively on the reputation of the nursing profession and the public at large. You apologised to this panel for your misconduct. When questioned about how you would handle the situation differently in the future, the panel found your detailed answers persuasive. The panel considered your insight to be extensive and genuine. The panel also had note of your unblemished career before this incident and since. 22

23 The panel considered that your misconduct relates to record keeping with regard to patient notes and a CTG trace. It considered these elements of your practice to be potentially remediable. The panel considered the evidence before it that you have kept up-to-date with training involving record keeping whilst working as a registered nurse. The panel had sight of a recent testimonial from the Clinical Nurse Manager at your current employer, who stated that there have not been any concerns about [your] practice, approach or general demeanour, nor regarding observations, record keeping or escalating concerns. The panel found that the other testimonials from your team members, including another staff nurse, were positive, and confirmed your professionalism. The panel also considered that you have carefully and thoughtfully reflected on your misconduct around the CTG trace, and demonstrated a high level of insight into your failings at the material time. However, the panel noted that you have not worked as a midwife since shortly after this incident nearly three years ago, and have not undertaken any training in conducting and interpreting CTG traces. The panel was not in a position to ascertain whether you would need to undertake a return to practice course should you decide to return to midwifery. The panel noted your evidence that you would seek to complete the appropriate and relevant training should you reconsider a return to midwifery. However, in the absence of any formal training completed or due to commence, the panel considered that, at the present time, you have not fully remediated your midwifery practice. The panel considered that there is no evidence before it of any concerns relating to your fitness to practise as a registered nurse. Given your stated desire not to return to midwifery, coupled with your high levels of insight, remorse and reflection, the panel considered that the risk of repetition to be extremely low. However, the panel was mindful that you have dual registration as a registered nurse and midwife. In the absence of sufficient remediation of your midwifery skills, the panel considered that you do present a risk to the public if you were to change your mind and recommence your midwifery practice. The panel therefore decided that a finding of impairment is necessary on public protection grounds. 23

24 The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the midwifery profession and upholding the proper professional standards for members of that profession. While the panel was aware of the tragic outcome, it considered that your misconduct was not sufficiently egregious, in and of itself, as to require a specific finding of impairment on public interest grounds. It therefore determined that, in this case, a finding of impairment on public interest grounds is not required. Nevertheless, having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. 24

25 Determination on sanction The panel considered this case very carefully and decided to make a conditions of practice order for three years. The effect of this order is that your name on the NMC register will show that you are subject to a conditions of practice order and anyone who enquires about your registration will be informed of this order. In reaching this decision, the panel had regard to all the evidence adduced in this case. The panel accepted the advice of the legal assessor. The panel bore in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the Sanctions Guidance (SG) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. Before making its determination on sanction, the panel first considered the aggravating and mitigating features present in this case. The panel considered the only aggravating feature to be that your misconduct placed patients at an unwarranted risk of harm. The panel considered the mitigating features to be: you admitted the charges at the start of the hearing; evidence of sincere remorse and genuine insight in oral and written form; you have extensively reflected around record keeping; your misconduct occurred during an isolated incident on a single shift; a notable lack of workplace support during the events; no regulatory findings have been made against you prior to or since these events in a long and unblemished career as a nurse and midwife; and there is no evidence of any issues regarding your current nursing practice. 25

26 The panel first considered whether to take no action, but concluded that this would be inappropriate in view of the seriousness of the case. The panel considered that it had found impairment on public protection grounds. In the circumstances, the panel decided that it would be neither appropriate nor proportionate to take no further action, nor would it suitably protect the public. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the SG, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that you have indicated that you do not intend to return to midwifery. However, the panel considered that, were you to return to midwifery practice without fully remediating the misconduct found, the public would not be suitably protected. The panel therefore decided that it would be neither appropriate nor proportionate to impose a caution order. The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the SG, in particular: no evidence of harmful deep-seated personality or attitudinal problems; identifiable areas of the nurse or midwife s practice in need of assessment and/or retraining; no evidence of general incompetence; potential and willingness to respond positively to retraining; patients will not be put in danger either directly or indirectly as a result of conditional registration; the conditions will protect patients during the period they are in force; and 26

27 it is possible to formulate conditions and to make provision as to how conditions will be monitored. The panel considered all of the factors above to be engaged in this case. The panel determined that it would be possible to formulate appropriate and practical conditions which would address the failings highlighted in this case. The panel accepted that you would be willing to comply with conditions of practice, and that you had been willing to undertake the LSAPP in 2015, but were advised that it would not be achievable. The panel had regard to the fact that this incident occurred nearly three years ago and that, other than these incidents, you have had a long, unblemished career as a nurse and midwife. In reaching its decision, the panel considered imposing a suspension order on your registration. Despite the tragic outcome of this birth, the panel considered that your misconduct is eminently remediable and restricted to record keeping and fetal monitoring. The panel noted that you have been working as a nurse since the incident and did not have any evidence before it of poor practice. The panel found that, through your training and nursing practice, you have remediated any concerns regarding your record keeping in nursing. Recent testimonials from your current colleagues indicate that you are a highly regarded nurse. The panel considered that there is a public interest in allowing an excellent nurse and experienced and competent midwife to return to unrestricted practice, and enabling you to return to midwifery if you decide to change your mind about your career intentions. The panel was therefore of the view that to impose a suspension order would be wholly disproportionate and would not be a reasonable response in the circumstances. Balancing all of these factors and having taken into account both the aggravating and mitigating features of this case, the panel determined that the appropriate and proportionate sanction is that of a conditions of practice order. Having regard to the matters it identified, the panel concluded that a conditions of practice order will mark the importance of maintaining public confidence in the profession, and will send to the 27

28 public and the profession a clear message about the standards of practice required of a registered midwife. The NMC, in notifying you of this hearing, indicated that it would be inviting the panel to impose a suspension order upon your registration with a review before its expiry. In light of the panel s findings on misconduct and impairment at this hearing, Ms Elcoate May submitted that the NMC had revised this sanction bid to a three-year conditions of practice order without a review, with the sole substantive condition being a complete prohibition of your midwifery practice. Ms Elcoate May submitted that, at the end of the three years, your midwifery registration would lapse, suitably protecting the public. Ms Maudsley indicated that you agreed with this course of action. The panel considered that such a condition would amount to a suspension order with respect to your midwifery registration. The panel noted that your misconduct was limited to record keeping and fetal monitoring, and considered that imposing a suspension on an area of your practice where your failings were remediable would be disproportionate. The panel also noted that, although you currently have no desire to return to midwifery, you are at liberty to change your mind at any time following the conclusion of this case. The panel considered that you should be enabled to have the opportunity to appropriately retrain if you so wish. In fact, the panel was of the view that there is a public interest in your being able to practise as a midwife, should you wish to do so. The panel therefore determined that the following conditions are appropriate and proportionate in this case: 1. You must not return to midwifery practice until you have completed the following approved training courses and submitted evidence of such to the NMC: a) midwifery-specific record keeping; and b) electronic fetal monitoring (including its use and interpretation of traces). 28

29 2. You must tell the NMC within seven days of any midwifery appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 3. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within seven days of you receiving notice of them. 4. You must within seven days of accepting any post of employment requiring registration with the NMC, or any course of study connected with midwifery, provide the NMC with the name/contact details of the individual or organisation offering the post, employment or course of study. 5. You must within seven days of entering into any arrangements required by these conditions of practice provide the NMC with the name and contact details of the individual/organisation with whom you have entered into the arrangement. 6. You must immediately tell the following parties that you are subject to a conditions of practice order under the NMC s fitness to practise procedures and disclose the conditions listed at (1) to (5) above, to them: a) any organisation or person employing, contracting with or using you to undertake midwifery work; b) any agency you are registered with or apply to be registered with (at the time of application) to provide midwifery services; c) any prospective employer (at the time of application) where you are applying for any midwifery appointment; and d) any educational establishment at which you are undertaking a course of study connected with midwifery, or any such establishment to which you apply to take a course (at the time of application). The panel agreed with the NMC s sanction bid that the period of this order should be for three years without a review, pursuant to Article 29(8A) of the Order, which states: 29

30 8A) If, at the time of making an order under paragraph (5)(b) or (c), the Fitness to Practise Committee is satisfied that, with effect from the date of the expiry of that order, it will not be necessary to (a) extend the period of the order; (b) vary the order; or (c) make any other order falling within article 29(5), the Committee may decide that article 30(1) does not apply to that order. The panel considered that, if you wished to return to midwifery and had successfully completed the training courses pursuant to condition 1, you would be able to seek an early review of this order in order to request its revocation. If you do not wish to return to midwifery, and do not undertake any midwifery-specific training, in this period, the order will expire at the end of the three year period. The panel considered that this would be the most appropriate and proportionate course of action, and would suitably protect the public. 30

31 Determination on interim order The panel considered the submissions made by Ms Elcoate May that an interim order should be made on the grounds that it is necessary for the protection of the public. Ms Maudsley, on your behalf, made no objection. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim conditions of practice order is necessary for the protection of the public. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. To do otherwise would be incompatible with its earlier findings. The conditions for the interim order will be the same as those detailed in the substantive order. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by the conditions of practice order 28 days after you are sent the decision of this hearing in writing. That concludes this determination. 31